Shenanne Tucker

Supreme Court At-a-Glance Conributor Shenanne Tucker, Practiced law in New Hampshire and Maine since 2002, and currently is predominantly privately employed working in insurance.

An appeal from Milford District Div. No. 2020-0234

Nov. 24, 2021

Affirmed.

 

  • Whether the trial court erred in its finding that the defendant committed identity fraud and, as a result, violated the good behavior condition of the suspended portion of her sentence.
  • Whether the court erred in holding a telephonic evidentiary hearing to determine what portion of the defendant’s suspended sentence would be imposed.

After pleading guilty in 2017 to making a false report, the defendant was sentenced to 12 months incarceration.  The sentence was deferred for one year and then suspended for another year, conditioned on good behavior.  However, in April 2019, just a few months before her suspended sentence was set to expire in July 2019, the defendant was arrested and convicted on theft charges.  This resulted in the State moving to impose the suspended sentence in June 2019. After a hearing, the court imposed 10 days of the 12 months suspension in November 2019.  The State moved to reconsider.  Its motion was set to be heard in February 2020.  In December 2019, the defendant misidentified herself to obtain information regarding a warrant.  This information was raised in the February 2020 hearing on the State’s 2019 motion to reconsider and again in a second motion to impose filed in February 2020.

A hearing was held on the State’s second motion on March 2, 2020 at which the State introduced law enforcement testimony that as a third party to the confidential arrest warrant information the defendant called about, she would not have been able to gain access to it under Milford policy practice and policy except that she misidentified herself as the arrestee.  The defendant submitted no evidence of her own in support of her opposition.  Following the hearing, the trial court granted the State’s motion to reconsider, determined that the defendant had violated the condition of good behavior with respect to her suspended sentence and ordered imposition of a “reasonable portion” of the sentence minus the 10 days previously served.  A subsequent hearing was set to determine how much of the suspended sentence would be imposed, but this was postponed due to COVID-19 restrictions and ultimately conducted via telephone on April 6, 2020.  The defendant opposed the order citing state and federal due process rights and requesting that the hearing be postponed until such time that it could be conducted in-person.  This request was denied and the hearing was conducted telephonically following which 70 days of defendant’s suspended sentence, minus 10 days served, was imposed.

On appeal, the Court reiterated that a suspended sentence can only be imposed on the basis of violation of a condition of good behavior if the trial court finds, by a preponderance of the evidence, that the defendant engaged in criminal conduct.” (citations omitted).  The defendant did not dispute the conviction for theft arising out of events occurring in June 2019.  The defendant also did not dispute that she posed as another person without permission or authority in December 2019.  The defendant instead argued that the State did not prove that she misidentified herself in the phone call for arrest warrant information “for the purpose of obtaining confidential information … that is not available to the general public.” RSA 638:26, I(d)(2016).

The Court reviewed the defendant’s arguments that RSA 638:26, I (d) required a declaration by statute or court rule that the information obtained was confidential.  Engaging the rules of statutory construction, the Court agreed with the State that the statute itself states that it pertains to the use of identify fraud to obtain information that “is not available to the general public.”  However, the Court also assumed without deciding defendant’s arguments that the statute would be vague and not provide adequate notice to a person of ordinary intelligence if applied to information that was not confidential by statute or court rule.  The Court found that RSA 106-B:14 (Supp. 2020), which defines summons and arrest information as confidential,  established sufficient alternative grounds to support the trial court’s order.  Therefore, the Court held that the defendant filed to meet her burden of demonstrating that the evidence, construed in her favor, was insufficient to support the requisite finding that she engaged in criminal conduct, and thus violated the condition of good behavior of her suspended sentence.

The Court next reviewed whether the telephonic sentencing hearing violated the defendant’s due process rights.  Reiterating that due process involved flexibility, the Court examined the ultimate questions into whether “the challenged procedures concern a legally protected interest” and whether “the notion of fundamental fairness” was preserved.  New Hampshire has recognized that revocation of a suspended sentence and incarceration involve “significant liberty interest[s]…worthy of due process protection.”  The Court agreed that “a criminal defendant has the right to be present” when the defendant’s presence bears a reasonably substantial relation to the ability to fully defend the charges and at other critical stages.  However, the Court found that hearings pertaining to suspended sentences are not part of the criminal prosecution, instead being “’a remedy for a defendant’s noncompliance, not a punishment for the underlying act.’”  Furthermore, there had been several in person hearings leading up to the April 2020 telephonic hearing at which the defendant had the opportunity to be represented by counsel, confront witnesses, and be physically present.  The defendant also had counsel and made a statement to the trial court at the telephonic hearing.  The defendant failed to demonstrate that her physical presence would have “’been useful in ensuring a more reliable determination’” with respect to what portion of her suspended sentence would be reasonable to impose.  Therefore, the Court found that the defendant failed to establish that more process than was provided by the telephonic hearing was owed to her given the prevailing situation with the pandemic.

The Court accordingly affirmed.

 

John M. Formella, attorney general, with Zachary L. Higham, assistant attorney general (on the brief and orally) for the State.

 

Stephanie Hausman, deputy chief appellate defender, of Concord (on the brief and orally), for the defendant.